Exhibit 4.3


 


Execution
Copy


 


AMENDMENT
NO. 2 TO RIGHTS AGREEMENT


 


This Amendment No. 2
to Rights Agreement (this “Amendment”) is entered into as of December 16,
2009 by and between Facet Biotech Corporation, a Delaware corporation (the “Company”),
and Mellon Investor Services LLC, a New Jersey limited liability company, as
Right Agent (the “Rights Agent”).


 


RECITALS:


 


WHEREAS, the Company and the Rights Agent have
previously entered into a Rights Agreement dated as of September 7, 2009,
as amended on December 15, 2009 (the “Agreement”; capitalized terms
used but not defined herein shall have the meaning set forth in the Agreement);


 


WHEREAS, pursuant to Section 27 of the Agreement, for so
long as the Rights are redeemable, the Company may in its sole and absolute
discretion amend any provision of the Agreement in any respect without the
approval of any holders of the Rights, as evidenced by a writing signed by the
Company and the Rights Agent;


 


WHEREAS, as of the date hereof, the Rights are redeemable; and


 


WHEREAS, the Board of Directors has deemed it fair, desirable
and in the best interests of the Company and its stockholders to allow the
acquisition by certain existing Company stockholders of additional shares of
Common Stock without any such stockholder becoming an Acquiring Person, and to
amend the Agreement accordingly as set forth below to permit such transaction,
and has duly authorized any officer of the Company to execute and deliver this
Amendment.


 


NOW, THEREFORE, in consideration of the premises and
mutual agreements hereinafter set out and of other consideration (the receipt
and sufficiency of which are acknowledged), the parties hereto agree as
follows:


 


1.     Amendment
of Section 1(a) of the Agreement. 
The definition of “Acquiring Person” in Section 1(a) of the
Agreement is hereby amended and supplemented by amending and restating the last
two sentences thereof in their entirety and replacing them with the following
three sentences:


 


“Notwithstanding
anything contained in this Section 1(a) to the contrary, solely in
the case of any Person who is one of the BVF Entities (as defined below) and
with respect to no other Person: (A) a reference to “20%” shall be
substituted for each reference to “15%” in the foregoing provisions of this Section 1(a),
so as to permit the Beneficial Ownership of up to 20% of the Common Stock of
the Company by such BVF Entities pursuant to, and only if the BVF Entities are
acting in compliance with, the terms of the Stockholders Agreement, dated as of
December 15, 2009 between the Company and the BVF Entities and (B) in
the event that the BVF Ownership Percentage is greater than 15% and less than
20%, in the event of any Transfer (as defined below) by a BVF Entity, upon the
occurrence of any such Transfer such references shall automatically be deemed
replaced by references to the then-current BVF Ownership Percentage plus one
share of Common Stock, solely to the extent such then-current BVF Ownership
Percentage is both


 

















 


lower than the
previously applicable BVF Ownership Percentage and less than 20%, unless and
until such then-current BVF Ownership Percentage is less than 15%, at which
time all such references shall revert to “15%” and no additional changes shall
be made pursuant to this clause (B). 
Notwithstanding anything contained in this Section 1(a) to the
contrary, solely in the case of any Person who is one of the Baupost Entities
(as defined below) and with respect to no other Person: (A) a reference to
“20%” shall be substituted for each reference to “15%” in the foregoing
provisions of this Section 1(a), so as to permit the Beneficial Ownership
of up to 20% of the Common Stock of the Company by such Baupost Entities
pursuant to, and only if the Baupost Entities are acting in compliance with,
the terms of the Stockholders Agreement, dated as of December 16, 2009
between the Company and the Baupost Entities and (B) in the event that the
Baupost Ownership Percentage is greater than 15% and less than 20%, in the
event of any Transfer (as defined below) by a Baupost Entity, upon the
occurrence of any such Transfer such references shall automatically be deemed
replaced by references to the then-current Baupost Ownership Percentage plus
one share of Common Stock, solely to the extent such then-current Baupost
Ownership Percentage is both lower than the previously applicable Baupost
Ownership Percentage and less than 20%, unless and until such then-current
Baupost Ownership Percentage is less than 15%, at which time all such
references shall revert to “15%” and no additional changes shall be made
pursuant to this clause (B).  For
purposes of this definition:  “BVF
Entities” shall mean Biotechnology Value Fund, L.P., Biotechnology Value
Fund II, L.P., BVF Investments, L.L.C., Investment 10, L.L.C., BVF Partners
L.P., BVF Inc. and Mark N. Lampert; “BVF Ownership Percentage” means, at
any time, the percentage of the outstanding Common Stock Beneficially Owned in
the aggregate by the BVF Entities and all Affiliates and Associates thereof as
of such time; “Baupost Entities” shall mean The Baupost Group, L.L.C.,
SAK Corporation and Seth A. Klarman; “Baupost  Ownership Percentage”
means, at any time, the percentage of the outstanding Common Stock Beneficially
Owned in the aggregate by the Baupost Entities and all Affiliates and
Associates thereof as of such time; and solely as used in this Section 1(a),
“Transfer” shall mean, directly or indirectly, to sell, transfer,
assign, pledge, encumber, hypothecate or similarly dispose of (by operation of
law or otherwise), either voluntarily or involuntarily, or to enter into any
contract, option or other arrangement or understanding with respect to the
sale, transfer, assignment, pledge, encumbrance, hypothecation or similar
disposition of (by operation of law or otherwise), any Common Stock or any
interest in any Common Stock, including by tendering (or announcing an
intention to tender) into any tender offer, regardless of whether such Common
Stock or interest is purchased pursuant to such tender offer, and for such
purpose the term “Transfer” shall include (1) in the case of any BVF
Entity, the sale of an Affiliate or Associate of any BVF Entity or the BVF
Entity’s interest in an Affiliate or Associate that Beneficially Owns shares of
Common Stock and (2) in the case of any Baupost Entity, the sale of an
Affiliate or Associate of any Baupost Entity or the Baupost Entity’s interest
in an Affiliate or Associate that Beneficially Owns shares of Common Stock.”


 


2.     Governing Law.  This
Amendment and the Agreement, as amended hereby, shall be governed by and
construed in accordance with the laws of the State of Delaware, provided, however, that all provisions regarding
the rights, duties, obligations and liabilities of the Rights Agent shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed entirely within such state.


 


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3.     Effect
of Amendment.  Except as expressly
modified hereby, the Agreement remains in full force and effect.  Upon the execution and delivery hereof, as of
the day and year first above written, the Agreement shall thereupon be deemed
to be amended and supplemented as hereinabove set forth as fully and with the
same effect as if the amendments and supplements made hereby were originally
set forth in the Agreement, and this Amendment and the Agreement shall
henceforth be read, taken and construed as one and the same instrument, but
such amendments and supplements shall not operate so as to render invalid or improper
any action heretofore taken under the Agreement.


 


4.     Descriptive
Headings.  Section headings in
this Amendment are included herein for convenience of reference only and shall
not constitute a part of this Amendment for any other purpose.


 


5.     Counterparts.  This Amendment may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Amendment and all of which, when taken together, will be deemed to constitute
one and the same agreement.  The exchange
of copies of this Amendment and of signature pages by facsimile or
electronic transmission shall constitute effective execution and delivery of
this Amendment as to the parties hereto and may be used in lieu of the original
Amendment for all purposes.  Signatures
of the parties hereto transmitted electronically or by facsimile shall be
deemed to be their original signatures for all purposes.


 


6.     Severability.  If any term, provision or restriction of this
Amendment is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions or
restriction of this Amendment shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.


 


[Signature Page Follows]


 


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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first above written.


 


	
   

  	
  FACET BIOTECH CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Faheem Hasnain

  
	
   

  	
  Name:

  	
  Faheem Hasnain

  
	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
  MELLON INVESTOR SERVICES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Asa Drew

  
	
   

  	
  Name:

  	
  Asa Drew

  
	
   

  	
  Title:

  	
  Vice President &
  Senior Relationship Manager

  



 


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